IN THE CASE OF:	  

		BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110013702 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general discharge be upgraded to an honorable discharge. 

2.  The applicant states that his discharge should be upgraded because he suffered mistreatment, a wrongful court-martial, separation and discrimination.

3.  The applicant provides a copy of his Personnel Qualification Record (Parts I and II).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 18 November 1976.  He completed his training and continued to serve through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 1 April 1985.

3.  On 10 September 1986, he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-1, for active transition/conversion to the Army Reserve (ATCAR) Program.  He had served 9 years, 9 months, and 23 days of active service and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) and on the following day, he was ordered to active duty in the Active Guard Reserve (AGR) Program and was assigned to Sacramento Army Depot, California for duty as a chemical noncommissioned officer (NCO).  He was promoted to the pay grade of E-7 on 8 August 1988.

4.  On 21 September 1989, he was transferred to a chemical detachment in Wilmington, Delaware for duty as an AGR/USAR trainer. The chemical detachment was under the control of the 97th Army Reserve Command at Fort Meade, Maryland.

5.  On 20 December 1993, the applicant’s battalion commander initiated action to bar him from reenlistment.  He indicated that the basis for his recommendation was that the applicant had accumulated 125 days of lost time due to absence without leave (AWOL) and was also in civilian confinement from 17 August to 24 August 1993 for contempt of court.  The bar to reenlistment was approved by the Department of the Army on 26 January 1994.
 
6.  On 3 February 1994, the applicant was convicted by a special court-martial of being AWOL from 16 to 18 June 1993, 21 to 22 June 1993, 13 July to 2 August 1993, 2 September to 29 September 1993, and 30 September to 31 October 1993.  He was sentenced to reduction to the pay grade of E-6, a reprimand, and restriction for 60 days.

7.  The facts and circumstances surrounding the applicant’s administrative separation are not present in the available records.  However, his records do show that an administrative separation board was conducted and the findings and recommendations were approved by the appropriate authority on 15 August 1994 who directed that the applicant be reduced to the pay grade of E-1 and discharged under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12C(1), due to misconduct.

8.  Accordingly, he was discharged under other than honorable conditions on 22 August 1994, under the provisions of Army Regulation 635-200, paragraph 14-12C(1), due to misconduct.  He had served 17 years, 9 months, and 4 days of active service.
9.  The applicant applied to the Army Discharge Review Board (ADRB) on 22 May 1995 for an upgrade of his discharge.  He contended that his discharge was inequitable given his 15+ years of honorable service.  After reviewing the available evidence in his case the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge.

10.  He again applied to the ADRB for an upgrade of his discharge and was granted a personal appearance before that board on 9 March 1998; however, he was incarcerated on a non-support charge and could not attend the hearing.  Although not fully explained in the available records, it appears that he was allowed to reschedule at a later date because he was again granted a personal appearance when he reapplied on 19 August 2002.

11.  The applicant was granted a personal appearance before the ADRB in Washington, D.C. on 6 January 2003 and after hearing testimony from the applicant and reviewing the facts in the case, the ADRB determined that given his years of service, the characterization of his service was too harsh and voted to upgrade his discharge to a general discharge.  The ADRB determined that the reason for his discharge was proper and equitable and voted not to change the reason and authority for his separation.  The proceedings of the ADRB were approved on 10 January 2003 and the applicant was subsequently issued a DD Form 214 showing that he was discharged under honorable conditions. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  Paragraph 3-7a of Army Regulation 635-200 provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding his discharge have been noted; however, they are not sufficiently mitigating when compared to the repeated nature of his offenses and his rank at the time.  The applicant's overall service simply did not rise to the level of an honorable discharge under honorable conditions.

2.  In the absence of evidence to the contrary, it appears that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  Notwithstanding the actions of the ADRB to upgrade his discharge,  the characterization and the narrative reason for separation were appropriate for the circumstances of his case.

4.  In the absence of evidence showing that an error or injustice occurred in his case, there appears to be no basis to grant his request for further upgrade of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION 

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   __x_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20110013702





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ABCMR Record of Proceedings (cont)                                         AR20110013702



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